At the stroke of the midnight hour, as the world slept, India awoke to the gruesome rape and murder of 31-year-old trainee doctor at Kolkata’s R.G. Kar Medical College. Following the incident, the nation reverted to a well-documented pattern. A harrowing incident occurs, triggering grave and sudden outrage, often accompanied by demands for harsher punishments for the accused, as exemplified by the Aparajita Bill. Over time, however, the nation slips back into complacency, awaiting another incident to reignite its fury. From Mathura, to Nirbhaya to R.G. Kar, the cycle of tragedy remains unbroken.
India remains a country that’s highly reactive and rarely proactive, whose policy makers remain inert until a catastrophe occurs. While retributive justice has its place, it serves merely as symptomatic treatment, failing to address root causes.
Rape isn’t merely an act of uncontrolled carnal desire; it is a manifestation of deeply ingrained societal prejudices. It reflects a pervasive culture that trivialises sexual violence and perpetuates notions of ideal victimhood, chastity, and female passivity. Our gendered laws inadvertently reinforce these biases, perpetuating the very culture they seek to dismantle.
Gendered laws and reinforced stereotypes
Prior to the enactment of the new criminal laws, Section 375 of the Indian Penal Code (IPC) defined rape as something a ‘male perpetrator’ did to a ‘female victim’. Rape against men, which was governed under Section 377, was not officially classified as an offence of rape but rather as ‘unnatural sex’.
The newly enacted Bharatiya Nyaya Sanhita (BNS) missed a crucial opportunity in dismantling such gender paradigms. With the omission of Section 377 altogether, male and transgender victims are deprived of any legal recourse. While such an omission could have been an act of legislative oversight, it reflects the societal notion that rape against cis-women is inherently more serious than rape against other genders.
Rape, regardless of gender, must be viewed as a violation of one’s bodily integrity, not of honour or chastity. The omission of Section 377 also discounts the idea of homosexual relationships and the possibility of rape in such scenarios. While the BNS makes the perpetrators of certain offences gender-neutral, it continues to recognise only women as victims in such cases.
Also read: Mere Outrage Cannot Rid This Nation of the Language of Rape
Our laws continue to reinforce the notion that men seek sex while women respond to it, thereby placing women in a submissive position. This, in turn, promotes a rape culture in society where women are viewed as passive sexual objects, making them more susceptible to rape.
Such gendered laws create immense dilemmas for the judiciary as well. For instance, in Priya Patel v. State of Madhya Pradesh, the Supreme Court had to acquit a woman charged with the offence of gang rape solely because it was ‘conceptually inconceivable’ under Section 375 of the now repealed IPC. The law ended up reinforcing the patriarchal notion that women are passive recipients of sexual violence, incapable of perpetrating it themselves.
The persistence of victorian morality
Despite laudable efforts towards decolonisation, our penal provisions retain vestiges of colonial morality. Section 74 of the BNS, which deals with acts outraging the ‘modesty’ of women, places the focus on female purity and chastity instead of upholding their autonomy.
Ambiguities in the language of these laws, including terms like ‘unwelcome behaviour’ and ‘modesty’, lead to misuse while failing to address systemic inequalities. These provisions place a disproportionate emphasis on punishing sexual wrongs, thereby neglecting the promotion of sexual rights such as freedom of expression, sexual autonomy, and equality in relationships.
Blind spots and intersectional exclusion
The marital rape exception in Section 63 highlights the deep-rooted connection between societal prejudices and laws, underscoring the urgent need for policy reform. Furthermore, laws also turn a blind eye to intersectional aspects of rape, especially with regards to how caste, religion, sexuality and other socio-economic factors leave or entirely exclude certain communities from protection and public discourse.
A call for genuine reform
If our bureaucrats genuinely wish to tackle the scourge of rape, they must look beyond symptoms and start addressing root causes. It is crucial for our lawmakers to address the systemic factors that perpetuate a rape culture in our society, starting with the very laws they draft.
Watch: ‘Women Not Considered Persons, But Possessions’: Lawyer Vrinda Grover on Rape in India
Instead of reinstating IPC’s Section 377 in the BNS, the legislature should focus on making the existing penal provisions for rape gender-neutral, thereby encompassing individuals of all genders. Additionally, laws addressing the ‘modesty’ of women should be rephrased to shift the emphasis from protecting purity to upholding personal autonomy.
The R.G. Kar case painfully reminds us that despite years of reforms, the horrors that Mathura and Nirbhaya faced persist. Even after years of freedom and legal progress, India struggles to protect its women and uphold their rights. It’s time for change. It’s time for reform. At the stroke of the midnight hour, it is time to awaken- completely, genuinely and sincerely.
Sai Dharshan K.S. is a law student at OP Jindal Global Law School.
